CIHM 
Microfiche 
Series 
(IMonog  raphe) 


ICIMH 

Collection  de 
microfiches 
(monographles) 


Canadian  Instituta  for  Historical  Microraproductiona  /  inttitut  Canadian  da  microraproductiona  hiatoriquas 


Technical  and  Bibliographic  Notes  /  Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  below. 


El 

D 
D 


D 
D 
D 
D 
D 


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Coloured  covers  / 
Couverture  de  couleur 

Covers  damaged  / 
Couverture  endommagSe 

Covers  restored  and/or  laminated  / 
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.  Cover  title  missing  /  Le  titre  de  couverture  manque 

Coloured  maps  /  Cartes  g^ographiques  en  couleur 

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Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations  / 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material  / 
Relid  avec  d'autres  documents 

Only  editton  available  / 
Seule  Edition  disponible 

Tight  binding  may  cause  shadows  or  distortion  along 
interior  margin  /  La  reliure  serr^e  peut  causer  de 
I'ombre  ou  de  la  distorsion  le  long  de  la  marge 
intirieure. 

Blank  leaves  added  during  restorations  may  appear 
within  the  text.  Whenever  possible,  these  have  been 
omitted  from  filming  /  Use  peut  que  certaines  pages 
blanches  ajoutSes  tors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  lorsque  cela  6tait 
possible,  ces  pages  n'ont  pas  i\i  lilmies. 


L'Institut  a  microfitm^  le  meilleur  exemplaire  qu'il  lui  a 
M  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire qii  soni  peut*Mre  uniques  du  point  de  vue  bibli* 
ographkiue,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuver«t  exiger  une  modificatton  dans  la  metho- 
ds normale  de  fiimage  son!  indk]u6s  ci-dessous. 

I     I  CokMjred  pages/ Pages  de  couleur 

I     I  Pages  damaged  /  Pages  endommag^es 

□  Pages  restored  and/or  laminated  / 
Pages  restaurtes  et/ou  pellicul^es 

0  Pages  discoloured,  stained  or  foxed  / 
Pages  d^color^es,  tachetees  ou  piqu^es 

I     I  Pages  detached  /  Pages  d^tach^es 

I  ^  Showthrough/ Transparence 

□  Quality  of  print  varies  / 
Qualit^  indgale  de  i'impression 

Includes  supplementary  material  / 
Comprend  du  materiel  suppl^mentaire 

Pages  wholly  or  partially  obscured  by  errata  slips, 
tissues,  etc.,  have  been  refilmed  to  ensure  the  best 
possible  image  /  Les  pages  totalement  ou 
partiellement  obscurcies  par  un  feuillet  d'errata,  une 
pelure.  etc.,  ont  6td  film^es  k  nouveau  de  fa9on  k 
obtenir  la  meilleure  image  possible. 

Opposing  pages  with  varying  colouration  or 
discolourations  are  filmed  twice  to  ensure  the  best 
possible  image  /  Les  pages  s'opposant  ayant  des 
colorations  variables  ou  des  decolorations  sont 
film^es  deux  fois  afin  d'obtenir  la  meilleure  image, 
possible. 


D 
D 


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Additional  comments  / 
Commentaires  suppi^mentaires: 


Pa«lMt1oo  U  as  follami     p.  [268]-2M. 


This  ittm  is  f  itmtd  st  ths  rtductlon  rstio  chtcktd  btlow  / 

Ce  deeumtr-'t  ctt  H\mi  su  ttux  d«  r<duellon  Ind!qu4  ei-dttteu(, 


lOx 

14x 

18x 

22x 

26x 

30x 

y 

12x 


16x 


20x 


24x 


28x 


32x 


Th«  copy  fUmad  hw%  has  baan  raproducad  thanks 
to  ttta  ganareaity  of: 

National  Library  of  Canada 


L'a>amplaira  fUrnA  ffut  raproduh  griea  A  la 
g4n«rosit*  da: 

Bibliothequa  nationala  du  Canada 


Tha  ifiMflaa  appaaring  hara  ara  tha  baat  quaJity 
poaaibia  conaidaring  tha  condition  and  lagibility 
of  tha  Bfiginai  copy  and  in  Iwaping  writh  tha 
fHniing  aontraot  ipacificationa. 


Originai  copiaa  in  printad  papar  eovara  ara  fHmad 
baginning  wHth  tha  front  eoitm  and  antfng  on 
tha  laat  paga  with  a  printad  or  iHuatratad  impraa- 
aion.  or  tlio  bacii  covar  whan  apprepriata.  All 
othor  originai  copiaa  ara  fUmad  baginning  on  tha 
first  paga  with  a  printad  or  IHuatratad  impraa- 
sion.  and  anding  on  tha  laat  paga  with  a  printad 
or  IHuatratad  impraaaion. 


Tha  laat  racordad  frama  on  aach  microfiche 
shall  contain  tha  symbol  -<^  (maaning  "CON- 
TINUED"), or  tha  symbol  ▼  (moaning  "END"), 
whiehavar  appliaa. 

Mapa.  plataa.  cltarts.  ate.,  may  ba  fHmad  at 
diffarant  raduction  ratios.  Thosa  too  larga  to  ba 
antiraiy  included  in  ona  anposura  ara  fHmad 
baginning  In  tlia  uppar  laft  hand  comor.  loft  to 
right  and  top  to  bottom,  aa  many  framas  as 
raquirad.  Tha  following  diagrama  llluatrata  tha 
mathod: 


Laa  imagas  sulvantaa  ont  *t*  raproduitas  avac  Is 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nanat*  da  I'aaampiaira  film*,  at  an 
conformity  avac  laa  cenditiona  du  contrat  da 
filmaga. 

Laa  aaampiairaa  originauK  dont  la  couvartura  an 
papiar  aat  Imprim4a  sont  fllmis  sn  commancant 
par  la  pramlar  plat  at  an  tarminant  soit  par  la 
damiAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  dIHuatration.  soit  par  la  sacond 
plat,  salon  lo  eaa.  Toua  laa  autraa  aaamplairas 
originaua  sont  fHmto  an  commandant  par  la 
pramiAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'iHuatration  at  w  tarminant  par 
la  dami^ra  paga  qui  comporto  una  talla 
amprainta. 

Un  das  symbolas  suivants  spparattra  sur  la 
damiAra  Imaga  da  chaqua  microfiche,  talon  la 
cas:  la  symbols  «^  signifia  "A  SUIVRE".  la 
symbola  ▼  signifia  "FIN". 

Laa  cartaa.  planchas.  tabiaaux.  ate.  pauvant  4tra 
filmis  A  daa  taux  da  rMuction  diffirants. 
Lorsqua  la  document  est  trap  grand  pour  ttra 
reproduit  en  un  soul  cUch*.  il  est  film*  A  partir 
da  Tangle  supArieur  gauche,  do  gauche  A  droite. 
et  do  haut  en  baa.  en  prenant  la  nombre 
d'Imagaa  nAceasaira.  Las  diagrammes  suivants 
illustrent  la  mAthoda. 


1  2  3 


1 

2 

3 

4 

5 

6 

«*'q'OCOW    MSOIUTION  TBT  OMIT 

(ANSI  and  ISO  TEST  CHART  No.  2) 


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12.0 


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16'_J  Eo»t   Uain   Strtct 

RochMt«r.   N««    lork         U609       USA 

(716)  482  -  0300  -  Phon* 

(716)  2U-M69-F« 


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■■Miii 


GASADA:  COLONY  TO  KINGDOM 


KfSDH  S.  BWABT 


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AlflBICAN  lODBNAL  <»  INTIHNATKXNAL  lAW 

AHU^  UU 


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'  'l'-??-Ty!y)! 


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CANADA 


COLONY  TO   KINGDOM 

I  suppose  there  is  a  stage  in  the  development  of  the  creature  at  which 
opinion  may  very  well  vary  as  to  whether  it  is  a  tadpole  or  a  fuU-fledged, 
or  rather  a  four-footed,  frog.    Canada,  constitutionally,  is  in  a  some- 
what uncertain  case;  for,  if  you  say  that  she  is  a  colony,  you  will  be  con- 
fronted with  some  weU-developed  legs,  and  if  you  say  that  she  is  an  m- 
dependent  state,  you  wiU  be  asked  to  explain  away  the  remains  of  the 
tail.    What  sort  of  compromising  language  a  biologist  would  apply  to 
hU  dubiosity,  I  do  not  know;  but,  with  reference  to  Canada,  I  am  pre- 
pared to  make  a  distinction,  —  to  say  that  she  is  nominally  a  colony, 
and  really  an  independent  state.    A  veritable  bit  of  the  actual  tail  is 
still  visible;  there  may  not,  indeed,  be  enough  for  performance  of  its 
former  function  of  control,  but  quite  enough  to  betray  the  origin  of 
the  animal;  while  the  legs  can  very  clearly  kick,  if  not  speak,  for  them- 
selves.   NominaUy,  I  say,  Canada  is  a  colony;  the  forms,  the  nomen- 
clature, the  legal  appearance  still  exist.    But  in  reality  Canada  is  inde- 
pendent and  governs  herself.    A  short  summary  of  Canadian  political 
history  will  establish  that  point. 

Resemblance  to  British  History.  A  sketch  of  the  constitutional  de- 
velopment of  the  United  Kingdom  itself  will,  with  a  few  explanations, 
suffice  for  the  main  features  of  the  development  of  the  Canadian  con- 
stitution.   Observe  the  following  parallelisms: 

1.  The  principal  agency  in  British  evolution  was  the  Common's 
control  of  taxation.   So  also  in  Canada. 

2.  In  earlier  years  this  cdntrol  was  not  completely  effective  because 
of  the  existence  of  the  hereditary  revenues  of  the  crown,  and  the  Kmg's 
frequent  recourse  to  aids,  benevolences,  prizes,  etc.  So  also,  as  to  the 
revenues,  in  Canada  — for  example,  all  the  moneys  derived  from  the 
sale  and  leasing  of  lands  (the  lands  all  belonged  to  the  King,  we  were 
told);  all  fines;  all  fees  of  office  (most  of  the  officials  received  fees);  and 

268 


CANADA 


an 


3 


ail  customs  duties  levied  by  Imperial  statute.  These  revenues  were 
large,  and  some  of  the  governors  looked  forward  with  joy  to  the  time 
when  they  would  be  sufficient  to  defray  all  expenditure  and  thus  end 
forever  the  absurdity  of  bothering  with  l^slative  assemblies. 

3.  In  earlier  times  the  kings  had  large  legislative  authority,  and  the 
Stuarts  claimed  divine  right  to  do  as  they  liked.  Defeated  in  many 
constitutional  contests  and  finally  in  civil  war,  all  such  claims  were 
withdrawn  and  ended.  So  also  in  Canada,  where  the  same  sort  of  con- 
tests, resulting  in  civil,  although  unsuccessful,  war,  preceded  the  con- 
cessit n  of  responsible  government  (1847). 

4.  In  earlier  times,  the  King  was  the  chief  executive  officer,  and  took 
advice  when  and  how  he  liked.    So  also  his  deputy  in  Canada. 

5.  Imperceptibly,  executive  functions  became  attached  to  various 
departments  presided  over  by  members  of  the  administration  of  the 
day.    So  also  in  Canada. 

6.  Gradually  the  King  ceased  to  attend  council  meetings  of  the  ad- 
ministration, and  finally  withdrew  altogether.   So  also  in  Canada. 

7.  The  most  marked  advance  in  this  last  respect  occurred  on  the  ac- 
cession of  George  I.  Not  only  could  he  not  speak  English  and  his  coun- 
cillors not  speak  Dutch,  but,  apart  from  his  desire  for  the  use  of  British 
soldiers  and  sailors  to  help  hun  in  his  seizure  of  Swedish  territory,  he 
did  not  care  very  much  what  his  ministers  did.  So  also  in  Canada. 
After  British  adoption  of  free  trade  and  free  navigation  (1846-9),  there 
were  few  matters  in  which  the  governors  were  specially  interested.  They 
guarded  British  mterests  only,  even  as  George  I  watched  over  those  of 
Hanover. 

8.  In  earlier  days,  treaties  were  one  of  the  peculiar  prerogatives  of 
the  Crown.  Nommally,  they  are  so  still,  but,  in  reality,  control  has 
passed  to  the  cabinet.  So  in  Canada.  Nominally,  Canada  has  no 
foreign  relations,  but  in  reality  she  r^ulates  them,  very  largely,  as  she 
wishes. 

9.  Even  the  influences  which  in  England  made  so  dilatory  and  slug- 
gish the  progress  of  political  evolution  were  duplicated  m  Canada.  There 
were  the  same  placemen  and  place-seekers;  the  same  sycophants  and 
parasites;  the  same  society-climbers  and  flatterers;  the  same  strivera 
for  titles  and  favors;  the  same  grovellers,  weaklings  and  imbeciles.  But 
■5*7  1*^5' 


270 


THB  AMBBICAN  JOUBNAL  OF  INTBBNATIONAL  LAW 


besides  aU  these,  there  were  always  very  many  estimable  men,  splendid 
men,  who  fought  against  reform  because  they  did  not  like  it;  because 
they' believed  it  low,  vulgar  and  democratic;  because  they  beUeved  that 
government  by  the  people  would  mean  spoliation  and  anarchy;  because 
of  their  assurance  that  the  classes  ought  to  govern  and  the  masses  to 
do  as  thev  were  told.  , 

The  parallelism  is  close.  Substitute  the  Colonial  Secretary  m  Cana- 
dian history  for  the  Sovereign  in  British,  and  it  is  fairly  complete. 

Present  Pontim.  Explanation  of  the  present  position  wiU  be  assisted 
by  dividing  into  two  categories  the  authority  which,  in  the  course  of 
time,  has  passed  from  the  Imperial  and  become  vested  in  the  Canadian 
Parliament,  namely,  (1)  that  relating  to  local  and  purely  mtemal  affairs, 
and  (2)  that  relating  to  matters  having  an  external  aspect. 

Internal  Affain.   Tight  check  upon  even  trifling  details  of  our  govern- 
ment was  maintained  until  the  union  of  the  two  Canadas  in  1840.    We 
had  legislative  assemblies,  but  the  governors  had  the  greater  power. 
Our  rebelUons  (1837-8)  produced  Lord  Durham's  report  (1839).    Lord 
Durham's  report  led  to  the  introduction  of  responsible  government, 
to  which  Lord  Zlgin  afterwards  (1847)  gave  practical  operation.    And 
British  adoption  of  the  principles  of  free  trade  (1846)  by  removmg  the 
only  reason  for  interference  in  our  domestic  affairs,  relieved  us  from  a 
good  deal  of  the  parentalism  which  we  had  theretofore  experienced  and 
resented.    After  that,  Uttle  tiffs  from  time  to  time  with  our  governors 
were  necessary.    Every  one  of  these  men  had  to  suffer  a  little  clipping  of 
the  -vings;  one  wanted  to  control  the  pardoning  power  in  crimmal  cases; 
another  wanted  to  exercise  a  sort  of  veto  over  provincial  legislation; 
another  imagined  that  he  ought  to  control  our  militia,  and  so  on.   None 
of  them  got  what  he  wanted,  and  in  later  years,  although  stUl  apt  to 
chai^  and  fret  a  little,*  they  hav-  ahnost  completely  settled  down  into 
recognition  of  their  limitations.   Indeed,  we  may  say  that,  with  reference 
to  all  purely  domestic  matters,  our  independence  of  control  is  not  only 
absolute,  but  is  unreservedly  admitted  and  acknowledged  by  the  Im- 
perial authorities. 
External  Aspects.    Interference  in  our  domestic  affairs  ceased,  not 

.  The  above  hw  no  reference,  and,  aa  far  aa  I  know,  no  appUcation  to  His  Royal 
Highness  the  Duke  of  Connaught. 


CANADA 


371 


out  of  deference  to  colonial  Rentiment  and  aspirations,  but  because,  as 
At.  Gladstone  once  said  —  when  the  British  Government  really  came 
to  consider  the  matter,  they  found  that  they  had  no  interest  in  such 
matters. 

In  other  respects,  in  relation  to  subjects  with  regard  to  which  certain 
sections  of  the  British  people  continued  to  consider  themselves  entitled 
to  privileges  in  their  colonies,  there  were  the  same  old  objections  to  our 
freedom  of  action,  the  same  old  Downing  Street  pressure  and  interven- 
tions. We  have  not  quite  finished  with  some  of  them  yet.  What  ha.s 
been  done  and  what  remains  to  be  done  may  be  seen  from  the  following 
review  tmder  the  headings  (1)  Judicial  Appeals;  (2)  Tariffs;  (3)  Copy- 
right; (4)  Naturalization;  (5)  Merchant  shipping;  (6)  Treaties;  (7)  War. 
The  first  two  are  settled.  The  third  is  pmctically  settled.  The  fourth 
and  fifth  are  under  discussion.  The  sixth  is  settled.  The  seventh — we 
shall  see. 

Judicial  Appeals.  Our  final  court  of  appeal  is  the  Judicial  Committee 
of  the  Bri  "'h  Privy  Council.  Originally,  colonies  had  no  option  in 
the  matter, — their  charters  so  stipulated.  Now  the  system  continues  in 
partial  operation  because  Canada  has  not  chosen  wholly  to  abolish  it. 
Nominally  we  have  no  control.  Nominally  the  King  may  bring  all 
judicial  matters  to  "the  foot  of  the  throne,"  and  do  with  them  there 
as  he  thinks  right.  Really  the  King  does  nothing  of  the  kmd.  Realty 
our  legislatures  pass  statutes,  from  time  to  time,  Asaiifning  to  limit  the 
sovereign's  authority.  Really  we  do  as  we  like,  and  the  sovereign  as- 
sents tc  any  legislation  we  choose  to  pass. 

Tariffs.  The  advent  of  free-trade  in  the  United  Kingdom  ended  the 
prohibitions  theretofore  imposed  upon  us,  and  we  commenced  (1859)  the 
regulation  of  our  own  tariffs.  Naturally  enough,  the  British  manu- 
facturer did  not  like  our  methods,  and  the  Colonial  Office  mtervened 
and  threatened  to  disallow  our  statute.  The  threat  brought  a  plucky 
reply  from  the  Canadian  Government: 


Self-government  would  be  utterly  annihilated  if  the  views  of  the  Im- 
perial Government  were  to  be  preferred  to  those  of  the  people  of  Canada. 
It  is,  therefore,  the  duty  of  the  present  government  distinctly  to  affirm 
the  right  of  the  Canadian  legislature  to  adjust  the  taxation  of  the  people 
in  the  way  they  deem  best,  even  if  it  should  unfortunately  happen  to 


272 


TH»  AHSUCAN  JOURNAL  OF  INTBBNATIONAL  LAW 


meet  the  dis^proval  of  the  Imperial  Ministry.  Her  Majesty  cannot 
be  advised  to  disallow  such  acts,  unless  her  advisers  are  prepared  to 
assum-  the  administration  of  the  affairs  of  the  colony,  irrespective  of 
the  views  of  its  inhabitants.* 

That  ended  the  merely  domestic  side  of  the  tariff  question,  but  several 
points  stiU  remained:  (1)  Preferential  tariffs— treating  one  country  one 
way  and  another  in  another  way,  (a)  as  between  different  parts  of  the 
King's  dominions,  and  (b)  as  between  those  parts  and  foreign  countries. 
(2)  The  obligation  of  treaties  (a)  past  and  (b)  future. 

Preferential  Tariffs.    As  early  as  1885,  Canada  had  been  proposing 
reciprocally  preferential  arrangements  within  the  Kmg's  dominions, 
and  in  1894  she  arranged  for  a  meeting  in  Ottawa  to  consider  that  and 
othor  questions.    Favorable  resolutions  were  passed,  but  they  met  with 
no  sympathy  in  England.    W-  were  told,  in  an  official  despatch  of 
28  June,  1895,  that  "the  guardianship  of  the  common  interests  of  the 
Empire  rests  '  with  the  British  Government;  that  "in  the  performance 
of  this  dut>  it  may  sometimes  be  necessary  to  require  apparent  sacri- 
fices on  the  part  of  a  colony    ♦    ♦    *    that  they  will  not,  vnthout  good 
reason,  place  difficulties  in  the  way  of  any  arrangements  which  a  colony 
may  regard  as  likely  to  be  beneficial  to  it";  that  this  would  have  to  be 
done,  and  that  that  would  have  to  be  observed.   Only  twentynseven  years 
ago!    Canada  worried  a  little,  and  appeared  to  be  able  to  do  nothmg. 
The  principal  difficulty  was  the  existence  of  two  old  treaties  which  pre- 
vented the  colonies  charging  lower  duties  on  the  productions  of  the 
United  Kingdom  than  on  those  of  Germany  and  Belgium.    Canada 
asked  that  the  treaties  might  be  denounced.   The  United  Kingdom  said 
no.    It  would  be  bad  for  us,  and  subversive  of  correct  principle.    Then 
Canada  took  a  pecuUar  step.    She  passed  a  statute  offering  the  United 
Kingdom  a  preference  (1897;  60  Vic.  c.  16,  s.  17)  and  asked  what  was 
going  to  be  done  about  it.    Shortly  afterwards,  the  Colonial  Conference 
of  1897  applied  further  pressure  and  Lord  Salisbury  denounced  the 
treaties.    Preference  has  become  a  familiar  feature  of  colonial  legisla- 
tion.   There  are  some  other  treaties  yet,  but  none  of  great  unportance. 
The  British  Government  is  at  the  present  moment  endeavoring  to  ar- 
range our  release  from  them. 

« Can.  8««.  Papers,  1860,  No.  38. 


CANADA 


27S 


Practically,  now,  we  do  as  we  wish.  Special  arrangOQents  have  been 
made  with  various  countries  and  we  make  such  terms  with  them  as  we 
please.  If  we  had  chosen  to  ccmsummate  the  recent  reciprocity  arrange- 
ments with  the  United  States,  no  one  imagines  that  the  United  King- 
dom would  have  thought  itself  entitled  to  Interfere  even  though  the 
United  States  was,  as  to  a  few  items  of  our  proposed  tariff,  placed  in  a 
better  position  than  the  United  Kingdom  itself.  Our  tariff  indepen- 
dence is  complete. 

Copyright.  Canada's  dispute  with  the  United  Kingdom  was  the  result 
of  American  methods  and  Ai'^erican  legislation.  Copyright  could  not 
be  obtained  by  Canadians  in  the  United  States  unless  the  type  of  the 
book  was  set  there,  whereas  British  law  gave  copyright  throughout  the 
whole  of  the  King's  dominions  to  everybody  who  published  (that  is,  put 
on  sale)  the  book  in  the  United  Kingdom  before  publishing  elsewhere. 
The  effect  was  specially  detrimental  to  Canada.  I  have  myself  been 
obliged  to  print  books  in  the  United  States  in  order  to  get  copyright 
there,  whereas  an  American  prints  at  home  and  obtains  copyright  in 
Canada  by  sending  a  few  copies  to  London.  In  1888,  and  afterwards, 
we  protested  very  vigorously.  A  bill  is  now  passing  the  British  Parlia- 
ment giving  us  complete  control. 

Naturalization.  British  legislation  provides  for  the  naturalization 
of  aliens  while  they  are  unthin  the  United  Kingdom  only.  It  professes  to 
change  natiouality  r:uy  so  long  as  the  recipient  remains  within  those 
limits.  Early  Canadian  legislation  conferred  complete  naturaUzation, 
but  in  later  times  Canada  has  conformed  her  law  to  the  British  model. 
She  gives  naturalization  within  Canada  only. 

The  Unit«d  Kingdom  has  now  under  consideration  a  proposal  to 
widen  the  effect  of  her  statute,  and  the  position  of  Canada  and  the  other 
Dominions  has  come  under  consideration.  Tlie  United  Kingdom  con- 
tends that  colonial  legislation  is  necessarily  limited  to  the  colony's  own 
territory,  and  that  Canada,  therefore,  cannot  confer  nationality  which 
would  be  valid  beyond  its  boundaries.  Canada  contends  that  her 
authority  is  complete.  Limitation  of  her  legislative  control  to  her  own 
territory,  she  says,  is  a  restriction  from  which  no  sovereignty  is  exempt. 
She  asserts  no  extra-territorial  validity  to  her  laws.  Conferring  status 
(that  is  all  that  takes  place)  has  no  appearance  of  extra-territorial  legis- 


274 


THE  AMBRICAN  JOUBNAL  OF  INTERNATIONAL  LAW 


lation.  Naturalisation  gives  a  status  just  as  does  marriage  and  incor- 
poration of  companies.  Foreign  nations  recognize  the  status  or  not 
as  they  please.  Canada  further  contends  that  her  Constitution  gives 
her  complete  control  of  the  subject  of  "Naturalization  and  Aliens." 
Canada  will,  of  course,  win  in  the  long  nm.  There  is  but  one  and  the 
same  solution  of  all  such  questions. 

Merchant  Shipping.  This  is  the  only  matter  of  any  importance, 
apart  from  those  involving  foreign  relations,  about  which  there  is  any 
difficulty,  and  it  promises  a  few  years  more  controversy  before  it,  too, 
ends  in  the  same  old  happy  way.  Originally  British  law  applied  to  all 
ships  flying  the  British  flag.  Then  a  distinction  among  those  ships 
was  introduced  by  permitting  r^;istration  of  ships  in  the  colonies,  and 
the  colonies  were  authorized  to  legislate  with  reference  to  those  ships. 
It  was  recognized  too  and  permit^ted  that  the  colonies  should  have  con- 
trol, subject  to  certain  limitations,  of  ships  (any  ships)  engaged  in  their 
coastal  trade.  Afterwards  special  constitutions  were  granted  to  Canada 
(1867)  and  Australia  (1900).  And  now  two  points  are  being  discussed: 
(1)  Have  the  Dominions  authority  to  control  by  their  legislation  all 
ships  within  their  waters?  and  (2)  If  not,  is  such  authority  to  be  ac- 
corded to  them? 

The  questions  arose  in  connection  with  attempts  by  Australia  and 
New  Zealand  to  regulate  the  rates  of  wages,  the  equipment,  the  sanitary 
arrangements  of  all  ships  engaging  in  their  trade.  British  and  foreign 
vessels  employ  cheap  labor.  Lascars  get  less  than  ten  cents  a  day,  and 
the  accommodation  for  the  men  upon  some  of  the  ships  is  in  proportion 
to  the  wages.  Australia  and  New  Zealand  insist  that  their  own  ships 
shall  pay  proper  wages  and  be  properly  equipped;  and  the  result  is  that 
their  own  ships  are  beaten  out  of  their  own  trade  by  inability  to  com- 
pete with  ships  careless  of  the  well-being  of  their  men. 

The  British  Government  agrees  that  the  colonies  may  regulate  their 
own  ships  and  also  all  ships  doing  coasting-trade,  but  they  object  to 
regulation  of  ships  trading  between  one  colonial  port  and  any  outside 
place.  Objection  is  put  chiefly  upon  the  ground  that  the  proposed 
legislation  would  be  equivalent  to  exclusion  of  British  and  foreign  ships; 
that  British  ships  ought  not  to  be  excluded;  and  that  if  foreign  ships 
were  excluded,  foreign  countries  would  retaliate  not  merely  against 


CANADA 


275 


i 


colonial  shipping  but  against  British  ships  also.  The  British  Govern- 
ment points  out,  moreover,  that  the  existence  of  many  foreign  treaties 
debars  the  possibility  of  legislation  along  the  proposed  lines. 

The  colonies,  at  the  last  Imperial  Conference  (1911),  made  replies  to 
these  objections,  and  they  adopted  two  resolutions,  one  requiring  such 
modification  of  the  treaties  as  would  relieve  the  colonies  from  the  con- 
tracted limitation  of  their  authority  (some  of  the  treaties  have  already 
been  got  rid  of),  and  the  other  in  the  following  language: 

That  the  self-governing  oversea  dominions  have  now  reached  a  stage 
of  development  when  they  should  be  entrusted  with  wider  legislative 
powers  in  respect  to  British  and  foreign  shipping. 

The  British  Government  assented  to  the  first,  but  opposed  the  second, 
of  these  resolutions. 

Treaties.  Originally  the  United  Kingdom  made  such  treaties  (binding 
upon  the  colonies)  as  it  pleased,  and  in  doing  so  paid  little  regard  to  the 
interests  of  the  oversea  possessions.  For  example,  when,  as  above 
mentioned,  the  colonies  came  to  object  to  the  Belgian  and  German  trea- 
ties (made  as  late  as  1862  and  1865  respectively),  Lord  Salisbury  said: 

With  respect  to  these  two  unlucky  treaties  that  were  made  by 
Lord  Palmerston's  government  some  thirty  years  ago,  I  am  sure  the 
matter  of  the  relation  of  our  colonies  could  not  have  been  fully  considered. 
We  have  tried  to  find  out  from  official  records  what  species  of  reasoning 
it  was  that  induced  the  statesmen  of  that  day  to  sign  such  very  un- 
fortunate pledges;  but  I  do  not  think  they  had  any  notion  that  they 
were  signing  any  pledges  at  all.  I  have  not  been  able  to  discover  that 
they  at  all  realized  the  importance  of  the  engagements  upon  which  they 
were  entering. 

In  1878,  we  obtained  a  declaration  from  the  British  Government 
that,  for  the  future,  no  commercial  treaty  would  be  made  by  which 
Canada  should  be  bound,  unless  she  herself  assented  to  it.*  The  Ger- 
man and  Belgian  treaties  had  been  made  before  that  date.  They  are 
now  gone,  and  we  are  free  from  any  future  commercial  treaty  obliga- 
tions other  than  those  of  our  own  making. 

And  we  do  make  them.  In  1879,  we  wanted  to  enter  into  some  tariff 
arrangements  with  Spain,  but  having  to  act  through  the  British  Foreign 

»  Britiah  Blue  Book,  Commercial,  No.  5,  1903;  Can.  Scsb.  Pap.,  No.  24,  p.  7. 


276 


THE  AMERICAN   JOURNAL  OF  INTERNATIONAL  LAW 


Office,  negotiations  were  difficult,  and  our  commissioner,  Sir  A.  T.  Gait, 
said  (as  afterwards  summarized  by  Sir  Charles  Tupper) :  "that  he  found 
himself  greatly  hampered  in  discharging  the  duties  imposed  upon  him 
by  the  Government  of  Canada,  because  he  only  stood  in  the  position 
of  a  commercial  commissioner,  and  it  was  necessarj'  ♦hat  all  his  negotia- 
tions with  the  Government  of  Spain,  should  be  ii  ei  -d  through  Her 
Majesty's  Minister  at  the  Court  of  Madrid."  * 

In  1893,  our  commissioner  to  negotiate  trade  arrangements  with 
France,  Sir  Charles  Tupper,  was  associated  with  the  British  Ambassador 
at  Paris,  and  Sir  Charles  did  the  work. 

In  1897,  further  arrangements  were  made  with  France,  and  on  this 
occasion  the  part  taken  by  the  British  authorities  was  purely  formal. 
With  reference  to  it  Sir  Wilfrid  Laurier  afterwards  said: 

It  has  long  been  the  desire,  if  I  mistake  not,  of  the  Canadian  people 
that  we  should  be  entrusted  with  the  negotiation  of  our  own  treaties, 
especially  in  regard  to  commerce.  Well,  this  looked-for  reform  has 
come  to  be  a  living  reality.  Without  revolution,  without  any  breaking 
of  the  old  traditions,  without  any  impairment  of  our  alliance,  the 
time  has  come  when  Canadian  interests  are  entrusted  to  Canadians,  and 
just  within  the  last  week,  a  treaty  has  been  concluded  with  France  —  a 
treaty  which  appeals  to  Canadians  alone,  and  which  has  been  negotiated 
by  Canadians  alone.* 

In  1909,  Canada  created  a  Department  of  External  Affairs,  and  the 
statute  (8,  9,  Ed.  VII,  c.  13)  expressly  refers  to  negotiations  with  foreign 
countries: 

The  Secretary  of  State  ♦  *  *  shall  have  the  conduct  of  all  offi- 
cial communications  between  the  government  of  Canada,  and  the 
government  of  any  other  country  in  connection  vxith  the  external  affairs 
of  Canada,  and  shall  be  charged  with  such  other  duties  as  may  from 
time  to  time  be  assigned  to  the  department  by  order  of  the  Governor  m 
Council  in  relation  to  such  external  affairs,  or  to  the  conduct  and  man- 
agement of  ir*  T  ational  or  intercolonial  negotiations,  so  far  as  they  may 
appertain  '        •     ovemment  of  Canada. 

In  1910,  a  treaty  was  arranged  between  the  United  Kingdom  and 
the  United  States  providing  for  the  general  arbitration  of  differences 

♦  Hans.,  May  12,  1887,  p.  390;  and  see  Canadian  Sessional  Papers,  1894,  No.  50.\, 
p.  9H. 

•Quoted,  Hans.,  1907,  8,  p.  1260. 


CANADA 


277 


between  Canada  and  the  United  States,  by  proceedings  with  which  the 
British  authorities  have  nothing  to  do,  by  direct  conununication,  namely, 
between  Canada  and  the  United  States.  In  this  respect,  the  treaty  is 
really  equivalent  to  a  transfer  from  the  British  Foreign  Office  to  the 
Canadian  Government  of  the  conduct  of  external  relations  with  the 
only  foreign  country  with  which  Canada  has  large  and  delicate  relations. 
Article  10  of  the  treaty  is  as  follows: 

Any  questions  or  matters  of  difference  arising  between  the  High  Con- 
tracting Parties  involving  the  rights,  obligations,  or  interests  of  the 
United  States  or  of  the  Dominion  of  Canada,  either  in  relation  to  each 
other  or  to  their  respective  inhabitants,  may  be  referred  for  decision 
to  the  International  Joint  Commission  by  the  consent  of  the  two  Parties, 
it  being  understood  that  on  the  part  of  the  United  States,  any  such 
action  will  be  by  and  with  the  consent  of  the  Senate,  and  on  the  part  of 
His  Majesty's  Government,  with  the  consent  of  the  Govemor-in-Council. 
In  each  case  so  referred,  the  said  Commission  is  authorized  to  examine 
into  and  report  upon  the  facts  and  circumstances  of  the  particular  ques- 
tions and  matters  referred,  together  with  such  conclusions  and  recom- 
mendations as  may  be  appropriate,  subject,  however,  to  any  restrictions 
or  exceptions  which  may  be  imposed  with  respect  thereto  by  the  terms 
of  the  reference. 

A  majority  of  the  said  Commission  shall  have  power  to  render  a  de- 
cision or  finding  upon  any  of  the  questions  or  matters  so  referred. 

If  the  said  Commission  is  equally  divided  or  otherwise  unable  to 
render  a  decision  or  finding  as  to  any  questions  or  matters  so  referred, 
it  shall  be  the  duty  of  the  Commissioners  to  make  a  joint  report  to  both 
Governments,  or  separate  reports  to  their  respective  Governments, 
showing  the  different  conclusions  arrived  at  with  regard  to  the  matters 
or  questions  so  referred,  which  questions  or  matters  shall  thereupon  be 
referred  for  decision  by  the  High  Contracting  Parties  to  an  umpire 
chosen  in  accordance  with  the  procedure  prescribed  in  the  fourth,  fifth 
and  sixth  pstragraphs  of  Article  XLV  of  the  Hague  Convention  for  the 
pacific  settlement  of  international  disputes,  dated  October  18,  1907. 
Such  umpire  shall  have  power  to  render  a  final  decision  with  respect  to 
those  matters  and  questions  so  referred  on  which  the  Commission  failed 
to  agree. 

When  we  remember  that  in  1892  the  British  Foreign  OP  leclared 
that  "To  give  the  colonies  the  power  of  negotiating  treaties  or  them- 
selves without  reference  to  Her  Majesty's  Government  would  be  to 
give  them  an  international  status  as  separate  states,  and  would  be 
equivalent  to  breaking  up  the  Empire  into  a  number  of  independent 


278 


THE  AMERICAN   JOURNAL  OF  INTERNATIONAL  LAW 


States,"  we  are  able  to  realize  the  import  of  our  present  arrangements 
with  the  United  States. 

War.  The  relation  between  Canada  and  the  United  Kingdom  with 
reference  to  war,  divided,  with  the  questicm  of  reciprocity  with  the 
United  States,  the  attention  of  the  electors  at  our  last  general  elections 
(21  September,  1911).  Popular  vote  ended  reciprocity,  and  the  war 
question  is  now,  and  will  for  some  time  be,  the  chief  subject  for  political 
discussion. 

The  relations  between  the  United  Kingdom  and  the  colonies  prior  to 
1902,  were  stated  in  a  memorandum  presented  to  the  Colonial  Con- 
ference of  that  year  by  the  War  OflBce,  as  follows: 

Prior  to  the  outbreak  of  the  war  in  South  Africa,  so  far  as  any  general 
scheme  for  the  defence  of  the  Empire  as  a  whole  had  been  considered,  it 
was  assumed  that  the  military  responsibilities  of  our  great  self-^veming 
colonies  were  limited  to  local  defence,  and  that  the  entire  burden  of 
furnishing  w^nforcements  to  any  portion  of  the  empire  against  which  a 
hostile  attack  in  force  might  be  directed  must  fall  on  the  regular  wmy. 
There  may  possibly  have  been  some  pious  hope  that  in  time  of  need  the 
colonies  might  rally  to  the  mother  country,  but  no  definite  arrange- 
ments were  made,  nor  were  inquiries  even  on  foot  as  to  whether  such 
aid  might  be  expected,  and  if  so,  in  what  strength.  Indeed,  the  neces- 
sity for  it  was  by  no  means  realized  and  its  reliability  was  doubted. 

Before  that  date,  Au-stralia  and  New  Zealand  had  made  an  arrange- 
ment with  the  British  Admiralty  whereby  certain  payments  were  to  be 
made  by  the  colonies,  and  certain  naval  defence  provided  by  the  Ad- 
miralty, and  at  the  conference  of  tliat  year,  all  the  other  self-governing 
Dominions,  except  Canada,  agreed  to  send  annual  money  contribu- 
tions. Canada  declined  upon  the  ground  of  the  inconsistency  of  the 
proceeding  with  the  principles  of  self-government. 

At  the  sfine  conference,  the  British  Government  asked  that,  "The 
great  se.f-g^veming  colonies  may  be  able  to  give  some  assurance  as  to 
the  strength  of  the  contingents  which  they  should  be  able  to  place  at 
the  disposal  of  His  Majesty's  government  for  extra  colonial  service  in  a 
war  with  a  European  Power." 

But  the  colonies  declined  to  pledge  themselves,  and  Canada  and 
Australia  said  that  the  matter  would  be  considered  "when  the  need 

arose." 

•  Colonial  Conference,  1902,  pp.  47,  48 


CANADA 


279 


At  the  next  conference  (1907),  Canada  had  the  satisfaction  of  finding 
that,  not  only  had  the  British  Government  been  converted  to  her  view, 
but  that  the  experience  of  some  of  the  other  colonies  had  proved  its 
soundness.  The  Prime  Minister,  Mr.  Campbell-Bannerman,  in  his  open- 
ii  J  speech,  said  that  he  did  not  (as  Mr.  Chamberlain  always  had  done), 
ask  for  money,  for  he  recognized  that  "the  cost  of  naval  defence  and  the 
responsibility  for  the  conduct  of  foreign  affairs  hang  together.  *  *  * 
You  m  common  with  us  are  representatives  of  self-governing  com- 
mimities."  ^ 

Afterwards,  Canada  and  Australia  commenced  the  establishment  of 
navies  of  their  own,  and  the  question  of  their  emplo}rment  in  British 
wars  necessarily  arose.  The  legislation  of  both  the  colonies  was  ab- 
solutely non-committal;  the  executives  were  given  authority,  at  their 
discretion,  to  hand  over  the  ships.  The  British  Government  made  no 
claim.  On  the  contrary,  it  readily  agreed  that  "the  naval  services  and 
forces  of  the  DonrJnions  of  Canada  and  Australia  will  be  exclusively 
under  the  control  of  their  respective  governments."  * 

In  the  Province  of  Quebec  a  new  political  party,  the  Nationalist 
party,  has  been  formed  for  the  purpose  of  protesting  against  Canadian 
obligation  to  take  part  in  British  wars  in  the  absence  of  representation 
in  British  councils.  The  Conservative  party  accepted  that  principle 
and  united  with  the  Nationalists  in  the  formation  of  the  present  govern- 
ment. The  Liberal  party  has  always  declared  Canada's  complete  free- 
dom of  action;  and,  therefore,  it  may  now  be  said  that  Canada  is  fairly 
unanimous  in  her  assertion  that  there  can  be  no  obligation  without 
representation.  Our  Prime  Minister  has  indicated  that  an  endeavor  will 
be  made  to  come  to  some  agreement  upon  that  basis  with  the  British 
Government,  and  it  is  a  part  of  his  declared  policy  that  no  permanent 
arrangement  will  be  finally  made  without  having  been  first  submitted 
for  ratification  to  the  people  of  Canada  at  a  general  election. 

The  situation  is,  therefore,  not  only  very  interesting,  but  extremely 
delicate.  It  looks  as  though  the  last  trace  of  our  tadpole  tail  were 
rapidly  disappearing. 

Parliamentary  Control.  In  the  Canadian  Constitution  are  the  follow- 
ing paragraphs: 

'  Proceedings,  p.  5.  •  Cd.  5745-2,  p.  1. 


280 


THI!  AMBBICAN   JODRNAL  OF  INTERNATIONAL  LAW 


55  Where  a  bill  passed  by  the  Houses  <rf  Parliament  is  presentwl 
to  the  Governor  General  for  the  Queen's  assent,  he  shaU  declare  accord- 
ing to  his  discretion,  but  subject  to  the  provisions  of  this  act  and  to 
Her  Majesty's  instructions,  either  that  he  assents  thereto  in  the  Queen  s 
name,  or  that  he  withholds  the  Queen's  assent,  or  that  he  reserves  the 
bill  for  the  Queen's  pleasure.  .^...  •     xu    r»        . 

56.  Where  the  Governor  General  assents  to  a  bill  m  the  Queens 
name,  he  shall,  by  the  first  convenient  opportunity,  send  an  authentic 
copy  of  the  act  to  one  of  Her  Majesty's  principal  Secretaries  of  btate, 
and  if  the  Queen  in  Council,  within  two  years  of  receipt  thereof  by  the 
Secretary  of  State,  thinks  fit  to  disallow  the  act,  such  disallowance 
(with  a  certificate  of  the  Secretary  of  State  of  the  day  on  which  the  act 
was  received  by  him)  being  signified  by  the  Governor  General,  by  spwch 
or  message  to  each  of  the  Houses  of  the  Parliament,  or  by  proclamation, 
shall  annul  the  act  from  and  after  the  day  of  such  signification. 

57  A  bill  reserved  for  the  signification  of  the  Queen  s  pleasure  shall 
not  have  any  force  unless  and  until,  within  two  years  from  the  day  on 
which  it  was  presented  to  the  Governor  General  for  the  Queen  s  assent, 
the  Governor  signifies  by  speech  or  message  to  each  of  the  Houses  of 
Parliament,  or  by  proclamation,  that  it  has  received  the  assent  of  the 
Queen  in  Council. 

Those  clauses  are  in  the  Constitution,  but  the  understanding  is  fairly 
complete  that  they  must  not  be  acted  upon.  The  last  occasion  upon 
which  they  were  brought  into  operation  was  in  1888,  when  a  bill  respect- 
ing copyright  was  reserved  by  the  Governor  and  remained  unassented 
to.  Canada  had  a  grievance,  as  already  stated,  against  the  United 
States  and  wanted  to  retaliate.  We  were  not  permitted  to  do  so.  Our 
freedom  is  now  conceded,  and  we  shall  very  shortly  do  as  we  have  been 
done  by.    The  disallowance  clauses  of  our  Constitution  are  out  of  date. 

A  Canadian  Flag.  Our  federation  was  formed  in  1867,  and  shortly 
afterwards  our  government  adapted  the  red  ensign  of  the  British  mer- 
cantile marine  to  our  purposes  as  a  Canadian  flag,  by  placing  upon  the 
fly  of  the  flag  the  Canadian  coat-of-arms.  The  Admiralty  at  first  made 
no  objection  to  the  practice.  On  the  contrary,  a  notification  was  sent 
by  its  Board  to  the  Colonial  Office,  May  22,  1874,  to  the  effect  that 
"no  objection  would  be  rdsed  to  any  vessel  registered  as  belonging  to 
one  of  her  Majesty's  colonies  flying  the  red  ensign  with  the  badge  of  the 
colony  in  the  fly." 

The  Admiralty  soon  changed  i  i  mind,  and  on  the  25th  of  July  of  the 
following  year  intimated  to  the  Colonial  Secretary  that  the  only  proper 


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flag  for  the  colonial  mercantile  marine  waa  "the  ensign  without  any 
badge." 

Canadian  ship-owners  took  little  notice  of  this  inhibition,  and  finally 
an  Imperial  statute  *  was  passed  to  put  us  straight: 

1.  The  red  ensign  usually  worn  by  merchant  ships  without  any  de- 
facement or  modification  whatsoever,  is  hereby  declared  to  be  the  proper 
national  colors  for  all  ships  and  boats  belonging  to  any  subject  of  Her 
Majesty;  except  in  the  case  of  Her  Majesty's  ships  or  boats,  or  in  the 
case  of  any  other  ship  or  boat,  for  the  time  being,  allowed  to  wear  any 
other  national  colors  in  pursuance  of  a  warrant  from  Her  Majesty  or 
from  the  Admiralty. 

Canada  was  notified  of  the  passmg  of  this  statute,  October  3,  1889, 
and  at  the  same  time  was  informed  that  there  would  "be  no  objection 
to  colonial  merchant  vessels  carrying  distinguishing  flags  with  the  badge 
of  the  colony  thereon,  in  addition  to  the  red  ensign." 

That  was  not,  however,  what  Canada  wanted,  and  an  application 
was  made,  June  30,  1890,  under  the  provisions  of  the  stf  tute,  "for  the 
issue  of  a  general  warrant  which  will  permit  Canadian  registered  ships 
to  fly  the  red  ensign  usually  worn  by  merchant  ships  with  the  Canadian 
coat-of-arms." 

Objection  being  made,  the  Canadian  Government  passed  an  Order- 
in-Council,  October  31,  1890,  in  support  of  the  previous  application, 
and  Sir  Charles  Tupper  wrote  to  the  Governor-General,  Lord  Stanley, 
on  November  13,  1890,  saying  that:  "Since  about  1869  our  ships  have 
been  encouraged  by  the  Government  of  Canada  to  use  the  red  ensign 
with  the  Canadian  coat-of-arms  in  the  fly.  •  *  *  These  ships  are 
in  every  quarter  of  the  globe." 

Afterwards,  November  7,  1891,  Vice-Admiral  Watson,  then  stationed 
at  Halifax,  wrote  to  the  Governor-General: 

I  have  read  with  much  interest  the  correspondence  relating  to  the 
Canadian  flag.  It  will  certainly  be  a  great  pity  if  the  Home  Govern- 
ment insist  on  Its  abolition.  As  a  matter  of  feeling  and  sentiment,  I 
know  for  certain  it  will  cause  very  great  dissatisfaction  in  the  colony, 
and  I  can  see  no  good  result  from  the  enforcement  of  the  order;  but  on 
the  contrary,  I  think  a  change  enforced  might  give  rise  to  trouble  and 
will  certainly  cause  general  ill-feeling.  They  are  proud  of  their  flag, 
and  their  pride,  in  my  opinion,  should  be  encouraged  and  not  dampened. 

•  52,  3  Vic,  c.  73. 


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The  GoTemor-Ccneral  took  the  same  view,  and  in  writing  to  the 
Colonial  Secretarj-,  December  12,  1891,  referred  to  the  use  of  the  red 
ensign  with  the  Canadian  badge  as  follows: 

It  has  been  one  of  the  objects  of  the  Dominion  as  of  Imperial  policy 
to  emphasize  the  fact  that,  by  confederation,  Canada  became  not  a 
mere  assemblage  of  provinces,  but  one  Umted  Dominion,  and,  though 
no  actual  order  has  ever  »>een  issued,  the  Domimon  Government  has 
encourajred,  by  precept  and  example,  the  use  on  all  pub  he  buildings 
through^  the  Provinces  of  the  red  ensign  with  the  Canadian  badge  m 

Of  course  it  may  be  replied  that  no  restriction  exists  with  respect  to 
flaiB  which  may  be  hoisted  on  shore,  but  I  submit  that  the  flag  is  one 
which  has  come  to  be  considered  as  the  recognized  flag  of  the  Dominion, 
both  ashore  and  afloat,  and  on  sentimental  grounds  I  think  there  is 
much  to  be  said  for  its  retention,  as  it  expresses  at  once  the  unity  ot 
the  several  Provinces  of  the  Dominion  and  the  identity  of  their  tlag 
with  the  colors  hoisted  by  the  ships  of  the  mother-country. 

Lord  Stanley  added  that  the  enforcement  of  the  Admiralty  order 
"would  be  attended  with  an  amount  of  unpopularity  very  dispropor- 
tionate to  the  occasion,  and  at  a  moment  when  it  is  more  than  usually 
important  to  foster  rather  to  check  an  independent  spirit  in  the  Domin- 
ion which,  combined  with  loyal  sentiments  toward  the  mother-country, 
I  look  upon  as  the  only  possible  barrier  to  the  annexationist  feeling  which 
is  so  strongly  pressed  upon  us  by  persons  acting  in  the  interests  of  the 
United  States.'" 

Thus  urged,  the  Admiralty  gave  way,  February  2,  1892,  at  the  same 
time  retaining  its  opinion  that  "there  are  not  unimportant  objections 
to  interference  with  the  simpUcity  and  uniformity  of  national  colors. 
Whatever  is  conceded  to  Canada  will  almost  certainly  be  cldmed  by 
the  other  colonial  governments." 

The  warrant  issued  by  the  Admiralty,  February  2, 1892,  is  as  follows: 

We  do  therefore  by  virtue  of  the  power  and  authority  vested  in  us 
hereby  warrant  and  authorize  the  red  ensign  of  Her  Majesty's  fleet 
with  the  Canadian  coat-of-arms  in  the  lly,  to  be  used  on  board  vessels 
registered  in  the  Dominions. 

>•  At  the  Dominion  electiona  of  1891,  the  quertion  ot  closer  trade  relations  with  the 
United  States  was  the  principal  issue,  the  Liberals  strongly  advocating  a  poUcy  of 
unrestricted  reciprocity. 


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283 


The  Admiralty's  warrant  sufficiently  established  a  Canadian  flag  on 
our  mercantile  marine,  and  as  appears  from  the  despatch  above  quoted, 
our  government,  without  any  special  Imperial  authority,  adopted  it 
as  our  flag  ashore.  It  very  appropriately  sjrmbolizes  and  expresses  the 
Canadian  constitutional  position;  for  the  imion-jack,  in  the  comer, 
indicates  our  political  origin  and  present  affiliation,  while  the  Canadian 
coat-of-arms  in  the  fly  denotes  the  commencement  of  independent  na- 
tional life.  Its  equivocal  character  has  its  parallel  and  its  explanation 
in  the  ambiguity  of  our  political  status.  Were  we,  in  fact  as  well  as  in 
theory,  a  part  of  the  British  Empire,  we  should  of  course  fly  the  flag" 
of  the  Elmpire  alone — the  union-jack,  the  symbol  of  ot  r  subordination. 
And  were  we,  in  theory  as  well  as  in  fact,  an  independent  nation,  we 
should  fly  no  flag  which  did  not  clearly  express  our  status  and  our 
nationality. 

The  Canadian  flag  has  been  adopted  for  use  upon  the  recently  pro- 
vided Canadian  war-ships,  an  agreement  with  the  British  Government 
declaring  that  on  the  jack-staff  of  our  vessels  there  shall  fly  "the  dis- 
tinctive flag  of  the  Dominion." 

Summery.    What  has  been  said  may  be  shi-       summarized  as  follows : 

1.  As  to  all  internal  affairs  Canada  is  absuiutely  free  from  control. 
She  is  really  an  independent  nation. 

2.  With  reference  to  those  questions  which  have  more  or  less  an 
external  aspect  — 

(a)  Canada  has  reduced,  and  may  at  any  time  terminate,  the  system 
of  judicial  appeals  to  the  British  Privy  Council. 

(b)  Canada  arranges  her  own  fiscal  tariffs,  including  the  giving  of 
preferences  as  she  pleases. 

(c)  Canada  controls  the  subject  of  copyright. 

(d)  The  subject  of  naturalization  is  at  the  moment  in  dispute. 

(e)  With  reference  to  merchant  shipping,  the  authority  of  Canada 
over  ships  registered  in  Canada  and  ships  engaged  in  her  coasting  trade, 
is  admitted.  Her  authority  over  other  ships  touching  her  ports  is  under 
discussion. 

(f)  Canada  arranges  her  tariff-treaties  as  she  pleases.  And  she  has 
with  the  United  States  an  arrangement  under  which  all  matters  of  dif- 
ference may  be  decided  without  reference  to  the  British  Goverrmient. 


284 


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(g)  Canada  has  asserted  her  liberty  of  action  with  reference  to  British 
wars.  She  has  frequently,  through  her  Prime  Minister,  declared  that 
she  will  or  will  not  take  part  in  such  wars  as  she  may  think  proper. 
Both  political  parties  in  Canada  hatre  agreed  that  there  can  be  no  war- 
obligation  on  the  part  of  Canada  in  the  absence  of  her  participation  in 

the  diplomacies  which  involve  war. 

John  S.  Ewart. 


